Key to Cubs' rooftop fight: 2 sentences

Legal experts say contract is vague, confusing

June 01, 2014|By Jared S. Hopkins, Tribune reporter

Building with rooftop seating on Waveland Avenue, whit patrons watching the game between the Chicago Cubs and the San Francisco Giants at Wrigley Field, in Chicago, on Sunday, Apr 14, 2013. (Nuccio DiNuzzo / Chicago Tribune)

The contract between the Chicago Cubs and rooftop owners runs a mere 10 pages, but as the two adversaries prepare for a possible legal battle, they have begun to focus on one sentence that could determine the future of historic Wrigley Field.

"Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this Agreement, including this section," the sentence states.

Those 20 words in Section 6.6 of the contract, which was obtained by the Tribune, are being cited by team executives as a factor in their favor should the rooftop owners sue the club over changes that would block rooftop views of games. Attorneys for the rooftop owners — both in 2004, when the contract was signed, and today — argue that the sentence was meant to refer to expansion of the bleachers, not other parts of the 100-year-old ballpark.

Legal experts contacted by the Tribune agreed that Section 6.6 might help the Cubs prevail in a legal battle. But they also cautioned that the language — in fact, much of the entire contract — is too vague to make a clear prediction about winners and losers.

"If you interpret it the way the Cubs do, they owe these people nothing. If you interpret it in a more limited way … then the other clauses are still effective," said Mark Conrad, a lawyer and director of the sports business program at Fordham University's Gabelli School of Business.

Conrad said he was surprised that, given the stakes for both sides, Section 6.6 was written in a way that leaves so much room for interpretation. "The whole thing's a head-scratcher," he said.

His take: "My hunch is that even as kooky as it is, reading it, I think the Cubs seem to have the stronger argument. It does say that the whole agreement does not apply."

In unveiling their latest plans last week to renovate Wrigley, Cubs officials set off another round of criticism from the rooftop owners. The team's plans now include two video boards and additional signs that would block the view from several rooftop venues. Also calling foul was Mayor Rahm Emanuel, who said portions of the package surprised his administration.

News releases and blueprints have dominated the public fight over Wrigley, but the paper contract may be the most important document at issue — even though its contents are largely a mystery to most fans and residents of the ballpark neighborhood. The contract, which expires at the end of 2023, was signed a decade ago to settle a lawsuit the Cubs brought against the rooftop owners over profiting from Cubs games. The agreement calls for the rooftop owners to pay the team 17 percent of gross revenues.

The Tribune showed the contract to five legal experts — including people familiar with sports law — and they all pointed to several key sections in trying to assess who might prevail in a legal battle. Among the items that caught their attention: Ballpark additions "to obstruct" the rooftops, such as windscreens, are prohibited, but there is no such agreement for revenue-generating signs; the contract doesn't forbid the Cubs from expanding the bleachers; and there are enough ambiguities throughout to keep a full roster of lawyers very busy.

Meanwhile, the experts noted that even though the rooftop owners have threatened to sue, the battle might not be fought in court. That's because the contract requires that the two sides enter arbitration, an independent and private legal process, if disputes arise from the contract. The decision would be binding.

Section 6.6, found under the subtitle "Wrigley Field bleacher expansion," consists of two sentences. It begins: "The Cubs shall not erect windscreens or other barriers to obstruct the views of the Rooftops, provided however that temporary items such as banners, flags, and decorations for special occasions, shall not be considered as having been erected to obstruct views of the Rooftops."

The rooftop owners, however, believe that Section 6.6 makes it clear that rooftop views cannot be blocked and said the reference to "expansion of Wrigley Field" does not apply to the current dispute.

"It's the signs, and there's no way that putting up a sign is expansion. All it is is blockage," said their attorney, Charles Tompkins of Williams Montgomery & John. "To expand something is to make it larger. To put a sign on top of something doesn't make it bigger."

But experts said the key sentence may be the second one in Section 6.6, which references approval by "governmental authorities."

"If I had been the rooftop owners 10 years ago, I would not have wanted that sentence there," said Gary Roberts, dean emeritus at the Indiana University McKinney School of Law. "That's a strange sentence, and I'm surprised the rooftop owners agreed to it. It's just a nuisance for them at this point. But it's there, and someone has to figure out what it means."